Ruling affects off reservation hunting

MADISON — A federal judge will decide if the Great Lakes Indian Fish & Wildlife Commission has the authority to permit tribal members to hunt deer off reservation at night in defiance of state regulations.

By:
By Kevin Murphy/For the Superior Telegram, Superior Telegram

MADISON — A federal judge will decide if the Great Lakes Indian Fish & Wildlife Commission has the authority to permit tribal members to hunt deer off reservation at night in defiance of state regulations.

District Judge Barbara Crabb continued until Thursday a hearing on the commission’s request for a preliminary injunction against the state enforcing its prohibition against shining deer at night.

Assistant Attorney General Thomas Dosch told Crabb the injunction hearing was unnecessary if she found the commission’s Nov. 21 order was issued outside of the process used to amend the court judgments that have defined the Chippewa’s rights to gather, hunt and fish in territory they ceded in the 19th century.

Without accepting or rejecting Dosch’s request, Crabb heard testimony from the tribes and state on the commission’s ability to issue less restrictive hunting regulations similar in manner to those the state has enacted.

Limits on the opportunities to gather, fish and hunt in ceded territory would be “frozen in time” by decisions Crabb previously made in trials involving walleye spear fishing, commercial timbering and shining deer, said Colette Routel, attorney for commission.

Instead, the commission’s authority has evolved as it has become a more sophisticated agency in the past 20 years, said Routel. During that time, the commission and the state have developed a process to modify resource regulations by the commission enacting a model code. The code can be updated when the state changes its regulations. Or, the commission can also propose changes, some which require consultation with the state to become effective, and some can become effective if the state unreasonably withholds approval, Routel said.

That latter occurred in the night deer hunting order the commission issued last month after months of negotiations that ended in stalemate, she said. The commission didn’t need state consent because the state changed its regulations to approve night wolf hunting. The commission satisfied the remaining conditions to modify its regulations by adopting safe hunting requirements.

Chris McGeshick, a former Department of Natural Resources warden, chairman-elect of the Sokaogon Band of Lake Superior Chippewa, and a tribal representative to the commission’s board, said the commission’s night hunting requirements are more strict than those the DNR used in sharpshooting deer in CWD eradication zones or for wolf hunting.

“I wanted it to be more safe for our hunters,” McGeshick said.

The commission requires tribal members make a daytime visit the area they want to hunt at night and file a shooting plan identifying potential safety hazards, McGeshick said.

As a warden shooting deer in chronic wasting disease eradication hunts, McGeshick said he filed shooting reports after the fact and hunted at night without first visiting the area which “wasn’t the safest thing to do.”

Dosch told Crabb that the commission can’t simply pre-empt state law in areas that require consultation with the state and the commission can’t amend its model code through an order like it did for night deer hunting, he said.

When issued, Crabb’s ruling will be in effect for the remainder of the Chippewa’s off-reservation hunting season that ends Jan. 6. A trial on the full merits of the commission’s authority will be subsequently scheduled.